EXCLUSIVE: Babysitter convicted in toddler’s death talks possible retrial, life in prison

Investigations

In an exclusive interview, KXAN talks to Rosa Jimenez from prison amid calls for a retrial

GATESVILLE, Texas (KXAN) — “It’s been lonely.”

That’s how Rosa Jimenez describes her life behind bars for the past 17 years.

At the maximum-security Mountain View Unit in Gatesville, Texas, Jimenez gets up early, reads her Bible and does a few exercises before heading to work as a graphic designer in braille.

She calls herself a “work-a-holic,” often volunteering extra time to create the braille that will accompany pictures in books for visually-impaired students out in the “free world.”

Despite keeping busy, she said it feels like it has been longer than 17 years.

“My body is here, but my mind shouldn’t be here,” Jimenez told KXAN from behind the pane of cloudy glass in the visitation room. “I’m free, you know?”

In 2005, Jimenez was tried and convicted of murder and injury to a child, in the death of 21-month-old Bryan Gutierrez.

Two years earlier, Jimenez was babysitting Bryan when he choked on a wad of paper towels.

According to the record from her original trial, Jimenez was “hysterical” and brought the boy to a neighbor’s home for help. Bryan was rushed to the hospital, but he had been deprived of oxygen for too long. After 3 months in hospice care, he died.

During the trial, prosecutors argued this was no accident. They brought four medical experts to the stand, who all testified it was unlikely a baby could have forced a wad of paper towels that size down his own throat.

According to the record, the ER doctor who treated the boy said, “Bryan could not have done this to himself.”

  • Rosa Jimenez at the Mountain View Unit in Gatesville (KXAN Photo/Frank Martinez)
  • Sign outside the maximum security prison in Gatesville where Rosa Jimenez has been for more than 15 years. (KXAN Photo/Avery Travis)
  • View outside the maximum security prison in Gatesville where Rosa Jimenez has been for more than 15 years. (KXAn Photo/Frank Martinez)
  • View inside the visitation room at the maximum security prison in Gatesville. (KXAN Photo/Frank Martinez)

Her defense, however, argued there was no sign of a struggle, Jimenez had no history of violence and his death was a tragic accident.

Her defense could only afford to bring forth one expert witness: a forensic pathologist who testified the baby could have swallowed the paper towels on his own. According to later appeals, this witness had outbursts in the courtroom, had “little or no pediatric training” and “was unable rebut many of the arguments” made by the doctors who testified.

The jury sided with the prosecution.

Jimenez said, “My life changed the second that everything happened.”

Longing for a life outside prison

Jimenez came to America from a small town outside Mexico City. She said her family was “really poor,” with her mother working to support her three brothers and three sisters.

As a college student, she decided to come to Austin and earn money for her family back home.

She was just 20 years old and undocumented when she began watching a neighbor’s child at the north Austin apartment complex where both families lived.

For $12 dollars a day, two or three times a week, Jimenez watched Bryan. Until that day in January 2003 when everything changed.

She declined to speak with KXAN about the events of that day because her case is up on appeal, but she does maintain her innocence.

When asked how hard it has been fighting to clear her name, Jimenez responded “To me, a name is just a name. I just want to go home — that’s all I want to do.”

If she were ever to be freed, Jimenez said she would return to Mexico to be with her mom.

“That’s where my family is, that’s where my future is, and that’s where my culture is. I love my people and my culture, and that is where I am supposed to be,” she said.

Retrial or release?

Due to developments in her case, her dreams of going home aren’t so unrealistic, but there could be a complication.

At a hearing in January, lawyers with the attorney general’s office appeared before a judge with concerns that Jimenez’ immigration status would complicate her transfer back to the Travis County jail, pending a retrial.

The State’s attorneys said that federal immigration attorneys could take custody of her, due to a current ICE detainer on her case, preventing the retrial from happening.

Jimenez’ attorneys told KXAN at the time, that was not likely to happen.

“When you are pending a retrial, I don’t believe the government would want to lose you. I think they will have me on watch, reporting somewhere every single day,” Jimenez speculated.

Over the years, several judges recommended Jimenez get a new trial.

In 2019, a federal magistrate judge overturned her conviction. Judge Yeakel called for a retrial of her case or her release, on the basis that she was “deprived of her Sixth Amendment right to a fair trial,” referencing the inadequate testimony of her defense expert.

The courts issued a deadline for that decision: Feb. 25, 2020.

“When I went and I read it, I didn’t believe it,” Jimenez said. “I was like, ‘Maybe they are not wording it right?'”

However, less than a month before that deadline, the 5th Circuit Court of Appeals granted a motion by the attorney general’s office to suspend Yeakel’s order while it considered the appeal.

In early February, five state representatives called on Travis County District Attorney Margaret Moore to re-examine the case.

Moore responded with her own letter, stating she has appointed a team to determine whether the case can and should be retried. She also said she’s asked the county’s Conviction Integrity Unit to review the case. A timeline for these two reviews has not been specified.

“The ultimate question here is whether this little baby stuffed a wad of paper towels the size of a mans fist down his throat, or whether the defendant did it,” Moore told KXAN. “It’s a very thoughtful and deliberate process, and we are prepared to engage in it.”

Moore said her office had spoken with the Gutierrez family, preparing them for the possibility of a retrial.

Our job here at the D.A.’s office is to see that justice is done. That includes justice for the victim. That child would be in college now. That family lost that baby, and a jury in Travis County, looking at all the facts, found this defendant guilty.”

Margaret Moore, Travis County District Attorney

KXAN reached out to the victim’s family, but they have declined to comment.

Moore said in a statement, “They are understandably distressed and disturbed. They feel the loss of this child as if it happened yesterday.”

As for how Jimenez feels about the possibility of a retrial: it scares her, but she believes the outcome would be different now.

The Innocence Project has taken her case and plans to present new medical testimony on her behalf.

Her current lawyers have argued her only expert witness in the original trial was unqualified. They said they have new experts in pediatric choking “from the nation’s leading children’s hospitals,” like John Hopkins and the Children’s Hospital of Pennsylvania, that could change the outcome of the case.

Vanessa Potkin, Director of Post-Conviction Litigation at the Innocence Project, said the experts will testify “not only is it possible for this to have been an accident, but there is no evidence to support that this was anything but an accident.”

Potkin also had a message for the D.A.

“It is the prosecutor’s job to see that justice is done, and that means it is the prosecutor’s job to not just defend this conviction at all costs but to review the new evidence of innocence and to act on it,” Potkin said.

The other main difference if there were to be a re-trial? Jimenez has learned English.

“Back then, I couldn’t even understand ‘hello’,” she said. “Now, I am able to speak to you. So if I hear the judge, the DA, or my attorney say something, I will be able to comprehend exactly what is going on there, instead of just depending on somebody sitting next to me. She [the translator] couldn’t even translate most of the stuff that was happening in that courtroom.”

She remembers the moment the judge gave her the 99 year sentence: she was confused, and her lawyer had to explain what happened.

“Back then, I didn’t really comprehend the fullness of this place,” Jimenez said. “Everything was too fast, and then the next thing I know they was taking me.”

‘I have to be positive’

When she arrived at the Mountain View unit for intake, she finally understood.

Naked and lined up against a wall with other new inmates (“like pigs, like animals,” she said), Jimenez was checked for contraband and given her intake number.

They strip you and they take everything away from you. I didn’t have nothing left. It was just me, myself and nothing else. You don’t have no more kids, you don’t have the father of your kids, you don’t have your mother. You probably will never see them again.”

Rosa Jimenez

Jimenez’ one-year-old daughter was there at the apartment the day Bryan died. Jimenez was also pregnant with her son. She gave birth to him while in prison. The two kids now live in College Station with a foster family.

“For 17 years, I’ve been dreaming how it would feel to touch my kids. You know I have all these pictures in my head,” she said. “But just to see her and to touch her? I can’t even describe it.”

Jimenez told KXAN that her daughter turned 18 and was finally able to visit her just weeks before the interview. They hugged and talked, but Jimenez was struck by how difficult it was to recognize her own daughter.

“I have to be positive. Regardless of anything, I have to be positive,” Jimenez said. “You see people here hurting themselves. I mean, if I wouldn’t be strong enough, maybe I would have been one of those people. But I have to think about, if it took years to see my daughter, now I have to wait to see my son. I have to be positive.”

‘A likely death sentence’

Even with the Feb. 25 deadline delayed, the clock is still ticking in Jimenez’ case.

Jimenez has Stage 4 kidney failure, and her only options are dialysis or a life-saving kidney transplant. As an inmate, Jimenez may not qualify for that transplant.

Her lawyers said inmates are able to get on the transplant wait list, but prison policies make it very difficult for inmates to actually obtain a transplant.

“It was very depressing to be honest. Why can’t I get the kidney? Why are we not allowed to get organs?” she said.

She asked for more options. She said she was told, “That’s it.”

In their letter, the five state lawmakers advocating for a new trial for Jimenez argued her declining health “would effectively render her continued incarceration a likely death sentence.”

Rep. Vikki Goodwin told KXAN she heard about the case from the Innocence Project.

“Is the justice system serving justice? That’s the bottom line,” Goodwin said. “We don’t want people to be in prison if they shouldn’t be.”

Photojournalist Frank Martinez, digital journalist Chelsea Moreno, digital investigative journalist David Barer and Digital Executive Producer Kate Winkle contributed to this report.

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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